G.R. No.

L-3691

November 21, 1951

JACINTO DEL SAZ OROZCO y MORTERA and MARIA PAZ ALCANTARA, plaintiffsappellants, vs. SALVADOR ARANETA, FRANCISCO DEL SAZ OROZCO Y LOPEZ, DOLORES DEL SAZ OROZCO Y LOPEZ, and the minors FELISA, EUGENIO, ANTONIO, JOSE, MARIA Y CARLOS, all surnamed DEL SAZ OROZCO Y LOPEZ whose natural guardian is DOA CONCEPCION LOPEZ VDA. DE DEL SAZ OROZCO, defendants-appellees. La O and Feria and Nicasio D. Castillo for plaintiffs-appellants. Araneta & Araneta for defendants-appellees. JUGO, J.: Eugenio del Saz Orozco died on February 7, 1922, leaving a will which he had executed on March 5, 1921, and was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son Jacinto del Saz Orozco y Mortera, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company, according to the project of partition executed pursuant to said will and duly approved by the court. On September 11, 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the plaintiff receiving his proportionate portion of 11,428 shares. On November 17, 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the plaintiff received 17,142 shares, making a total of 28,570 shares. The question at this issue is whether the stock dividend is part of the capital which should be preserved in favor of the owners or an income of fruits of the capital which should be given to and enjoyed by the life usufructuary, the plaintiff herein, as his own exclusive property. The same question was raised in the Matter of the Testate Estate of Emil Maurice Bachrach, * G.R. No. L-2659 the decision of which was promulgated on October 12, 1950. In that case, the question raised was stated as follows: Is a stock dividend fruit or income, which belongs to the usufructuary, or is it capital or part of the corpus of the estate, which pertains to the remainderman. That is the question raised in this appeal. In said case, Emil Maurice Bachrach was the owner of 108,000 shares of stock of the Atok Big Wedge Mining Co., Inc. He received 54,000 shares, representing 50 per cent stock dividend on said original shares. On June 10, 1948, Mary MacDonald Bachrach as life tenant or usufructuary of the estate filed a motion asking the Court of First Instance to authorize the Peoples Bank and Trust Company, as administrator of the estate of Emil Maurice Bachrach, to transfer to her the said 54,000 shares of stock dividend by indorsing and delivering to her the corresponding certificates of stock, claiming that said dividend, although paid out in the form of stock, was fruit or income and, therefore, belonged to her as usufructuary. The other heirs of Bachrach opposed the motion on the ground that the stock dividend was part of the capital or corpus of the estate and belonged to the remainderman. The court granted the motion and the other heirs appealed. Justice Ozaeta, with the unanimous concurrence of the other members of this Court, ruled that a dividend, whether in the form of cash or stock, is income and, consequently, should go to the

usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be declared only out of profits of the corporation, for it were declared out of the capital it would be a serious violation of the law. For the reason sustaining the doctrine, we refer to that recent decision. The appellees attempt to differentiate the present case from that case, contending that, while the doctrine in that case effected a just and equitable distribution, the application of it in the present case would cause an injustice, for, quoting Justice Holmes, "abstract propositions do not decide concrete cases." We have examined the two cases carefully and we have not perceived any difference which would justify a reversal or modification of the doctrine in the Bachrach case. One of the differences pointed out is that by the declaration of stock dividends the voting power of the original shares of stock is considerably diminished, and, if the stock dividends are not given to the remaindermen, the voting power of the latter would be greatly impaired. Bearing in mind that the number of shares of stock of the Benguet Consolidated Mining company is so large, the diminution of the voting power of the original shares of stock in this case cannot possibly affect or influence the control of the policies of the corporation which is vested in the owners of the great block of shares. This would not be a sufficient reason for modifying the doctrine of the Bachrach case. These remarks are made in answer to the argument of the appellees in this particular case, but they do not imply that if the diminution of the voting power were considerable the doctrine should be modified. With regard to the sum of P3,428.40 which is alleged to have been received by the plaintiff from the Benguet Consolidated Mining Company, as a result of the reduction of its capital in January, 1926, it appears that it has not been proven that the plaintiff has received said sum; on the contrary, it was denied by him as soon as he arrived in the Philippines from Spain. There is no ground, therefore, for ordering the plaintiff to deliver such sum to the defendants. In view of the foregoing, the judgment appealed from is reversed, and it is declared that the stock dividends amounting to 28,570 shares, above mentioned, belongs to the plaintiff-appellant Jacinto del Saz Orozco y Mortera exclusively and in absolute ownership. Without costs. It is so ordered. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Reyes and Bautista Angelo, JJ., concur.

NATIONAL HOUSING AUTHORITY, petitioner, vs. COURT OF APPEALS, BULACAN GARDEN CORPORATION and MANILA SEEDLING BANK FOUNDATION, INC., respondents. DECISION CARPIO, J.: The Case This is a petition for review[1] seeking to set aside the Decision[2] dated 30 March 2001 of the Court of Appeals (appellate court) in CA-G.R. CV No. 48382, as well as its Resolution dated 25 June 2001 denying the motion for reconsideration. The appellate court reversed the Decision[3] of Branch 87 of the Regional Trial Court of Quezon City (trial court) dated 8 March

1994 in Civil Case No. Q-53464. The trial court dismissed the complaint for injunction filed by Bulacan Garden Corporation (BGC) against the National Housing Authority (NHA). BGC wanted to enjoin the NHA from demolishing BGCs facilities on a lot leased from Manila Seedling Bank Foundation, Inc. (MSBF). MSBF allegedly has usufructuary rights over the lot leased to BGC. Antecedent Facts On 24 October 1968, Proclamation No. 481 issued by then President Ferdinand Marcos set aside a 120-hectare portion of land in Quezon City owned by the NHA[4] as reserved property for the site of the National Government Center (NGC). On 19 September 1977, President Marcos issued Proclamation No. 1670, which removed a seven-hectare portion from the coverage of the NGC. Proclamation No. 1670 gave MSBF usufructuary rights over this segregated portion, as follows: Pursuant to the powers vested in me by the Constitution and the laws of the Philippines, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, do hereby exclude from the operation of Proclamation No. 481, dated October 24, 1968, which established the National Government Center Site, certain parcels of land embraced therein and reserving the same for the Manila Seedling Bank Foundation, Inc., for use in its operation and projects, subject to private rights if any there be, and to future survey, under the administration of the Foundation. This parcel of land, which shall embrace 7 hectares, shall be determined by the future survey based on the technical descriptions found in Proclamation No. 481, and most particularly on the original survey of the area, dated July 1910 to June 1911, and on the subdivision survey dated April 19-25, 1968. (Emphasis added) MSBF occupied the area granted by Proclamation No. 1670. Over the years, MSBFs occupancy exceeded the seven-hectare area subject to its usufructuary rights. By 1987, MSBF occupied approximately 16 hectares. By then the land occupied by MSBF was bounded by Epifanio de los Santos Avenue (EDSA) to the west, Agham Road to the east, Quezon Avenue to the south and a creek to the north. On 18 August 1987, MSBF leased a portion of the area it occupied to BGC and other stallholders. BGC leased the portion facing EDSA, which occupies 4,590 square meters of the 16-hectare area. On 11 November 1987, President Corazon Aquino issued Memorandum Order No. 127 (MO 127) which revoked the reserved status of the 50 hectares, more or less, remaining out of the 120 hectares of the NHA property reserved as site of the National Government Center. MO 127 also authorized the NHA to commercialize the area and to sell it to the public. On 15 August 1988, acting on the power granted under MO 127, the NHA gave BGC ten days to vacate its occupied area. Any structure left behind after the expiration of the ten-day period will be demolished by NHA. BGC then filed a complaint for injunction on 21 April 1988 before the trial court. On 26 May 1988, BGC amended its complaint to include MSBF as its co-plaintiff. The Trial Courts Ruling

The trial court agreed with BGC and MSBF that Proclamation No. 1670 gave MSBF the right to conduct the survey, which would establish the seven-hectare area covered by MSBFs usufructuary rights. However, the trial court held that MSBF failed to act seasonably on this right to conduct the survey. The trial court ruled that the previous surveys conducted by MSBF covered 16 hectares, and were thus inappropriate to determine the seven-hectare area. The trial court concluded that to allow MSBF to determine the seven-hectare area now would be grossly unfair to the grantor of the usufruct. On 8 March 1994, the trial court dismissed BGCs complaint for injunction. Thus: Premises considered, the complaint praying to enjoin the National Housing Authority from carrying out the demolition of the plaintiffs structure, improvements and facilities in the premises in question is hereby DISMISSED, but the suggestion for the Court to rule that Memorandum Order 127 has repealed Proclamation No. 1670 is DENIED. No costs. SO ORDERED.[5] The NHA demolished BGCs facilities soon thereafter. The Appellate Courts Ruling Not content with the trial courts ruling, BGC appealed the trial courts Decision to the appellate court. Initially, the appellate court agreed with the trial court that Proclamation No. 1670 granted MSBF the right to determine the location of the seven-hectare area covered by its usufructuary rights. However, the appellate court ruled that MSBF did in fact assert this right by conducting two surveys and erecting its main structures in the area of its choice. On 30 March 2001, the appellate court reversed the trial courts ruling. Thus: WHEREFORE, premises considered, the Decision dated March 8, 1994 of the Regional Trial Court of Quezon City, Branch 87, is hereby REVERSED and SET ASIDE. The National Housing Authority is enjoined from demolishing the structures, facilities and improvements of the plaintiffappellant Bulacan Garden Corporation at its leased premises located in Quezon City which premises were covered by Proclamation No. 1670, during the existence of the contract of lease it (Bulacan Garden) had entered with the plaintiff-appellant Manila Seedling Bank Foundation, Inc. No costs. SO ORDERED.[6] The NHA filed a motion for reconsideration, which was denied by the appellate court on 25 June 2001. Hence, this petition. The Issues The following issues are considered by this Court for resolution:

WHETHER THE PETITION IS NOW MOOT BECAUSE OF THE DEMOLITION OF THE STRUCTURES OF BGC; and WHETHER THE PREMISES LEASED BY BGC FROM MSBF IS WITHIN THE SEVENHECTARE AREA THAT PROCLAMATION NO. 1670 GRANTED TO MSBF BY WAY OF USUFRUCT. The Ruling of the Court We remand this petition to the trial court for a joint survey to determine finally the metes and bounds of the seven-hectare area subject to MSBFs usufructuary rights. Whether the Petition is Moot because of the Demolition of BGCs Facilities BGC claims that the issue is now moot due to NHAs demolition of BGCs facilities after the trial court dismissed BGCs complaint for injunction. BGC argues that there is nothing more to enjoin and that there are no longer any rights left for adjudication. We disagree. BGC may have lost interest in this case due to the demolition of its premises, but its co-plaintiff, MSBF, has not. The issue for resolution has a direct effect on MSBFs usufructuary rights. There is yet the central question of the exact location of the seven-hectare area granted by Proclamation No. 1670 to MSBF. This issue is squarely raised in this petition. There is a need to settle this issue to forestall future disputes and to put this 20-year litigation to rest. On the Location of the Seven-Hectare Area Granted by Proclamation No. 1670 to MSBF as Usufructuary Rule 45 of the 1997 Rules of Civil Procedure limits the jurisdiction of this Court to the review of errors of law.[7] Absent any of the established grounds for exception,[8] this Court will not disturb findings of fact of lower courts. Though the matter raised in this petition is factual, it deserves resolution because the findings of the trial court and the appellate court conflict on several points. The entire area bounded by Agham Road to the east, EDSA to the west, Quezon Avenue to the south and by a creek to the north measures approximately 16 hectares. Proclamation No. 1670 gave MSBF a usufruct over only a seven-hectare area. The BGCs leased portion is located along EDSA. A usufruct may be constituted for a specified term and under such conditions as the parties may deem convenient subject to the legal provisions on usufruct.[9] A usufructuary may lease the object held in usufruct.[10] Thus, the NHA may not evict BGC if the 4,590 square meter portion MSBF leased to BGC is within the seven-hectare area held in usufruct by MSBF. The owner of the property must respect the lease entered into by the usufructuary so long as the usufruct exists.[11] However, the NHA has the right to evict BGC if BGC occupied a portion outside of the seven-hectare area covered by MSBFs usufructuary rights.

MSBFs survey shows that BGCs stall is within the seven-hectare area. On the other hand, NHAs survey shows otherwise. The entire controversy revolves on the question of whose land survey should prevail. MSBFs survey plots the location of the seven-hectare portion by starting its measurement from Quezon Avenue going northward along EDSA up until the creek, which serves as the northern boundary of the land in question. Mr. Ben Malto (Malto), surveyor for MSBF, based his survey method on the fact that MSBFs main facilities are located within this area. On the other hand, NHAs survey determines the seven-hectare portion by starting its measurement from Quezon Avenue going towards Agham Road. Mr. Rogelio Inobaya (Inobaya), surveyor for NHA, based his survey method on the fact that he saw MSBFs gate fronting Agham Road. BGC presented the testimony of Mr. Lucito M. Bertol (Bertol), General Manager of MSBF. Bertol presented a map,[12] which detailed the area presently occupied by MSBF. The map had a yellow-shaded portion, which was supposed to indicate the seven-hectare area. It was clear from both the map and Bertols testimony that MSBF knew that it had occupied an area in excess of the seven-hectare area granted by Proclamation No. 1670.[13] Upon crossexamination, Bertol admitted that he personally did not know the exact boundaries of the sevenhectare area.[14] Bertol also admitted that MSBF prepared the map without consulting NHA, the owner of the property.[15] BGC also presented the testimony of Malto, a registered forester and the Assistant VicePresident of Planning, Research and Marketing of MSBF. Malto testified that he conducted the land survey, which was used to construct the map presented by Bertol.[16] Bertol clarified that he authorized two surveys, one in 1984 when he first joined MSBF, and the other in 1986.[17] In both instances, Mr. Malto testified that he was asked to survey a total of 16 hectares, not just seven hectares. Malto testified that he conducted the second survey in 1986 on the instruction of MSBFs general manager. According to Malto, it was only in the second survey that he was told to determine the seven-hectare portion. Malto further clarified that he based the technical descriptions of both surveys on a previously existing survey of the property.[18] The NHA presented the testimony of Inobaya, a geodetic engineer employed by the NHA. Inobaya testified that as part of the NHAs Survey Division, his duties included conducting surveys of properties administered by the NHA.[19] Inobaya conducted his survey in May 1988 to determine whether BGC was occupying an area outside the seven-hectare area MSBF held in usufruct.[20] Inobaya surveyed the area occupied by MSBF following the same technical descriptions used by Malto. Inobaya also came to the same conclusion that the area occupied by MSBF, as indicated by the boundaries in the technical descriptions, covered a total of 16 hectares. He further testified that the seven-hectare portion in the map presented by BGC, [21] which was constructed by Malto, does not tally with the boundaries BGC and MSBF indicated in their complaint. Article 565 of the Civil Code states: ART. 565. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed. In the present case, Proclamation No. 1670 is the title constituting the usufruct. Proclamation No. 1670 categorically states that the seven-hectare area shall be determined by future survey under the administration of the Foundation subject to private rights if there be any. The appellate court and the trial court agree that MSBF has the latitude to determine the location of

its seven-hectare usufruct portion within the 16-hectare area. The appellate court and the trial court disagree, however, whether MSBF seasonably exercised this right. It is clear that MSBF conducted at least two surveys. Although both surveys covered a total of 16 hectares, the second survey specifically indicated a seven-hectare area shaded in yellow. MSBF made the first survey in 1984 and the second in 1986, way before the present controversy started. MSBF conducted the two surveys before the lease to BGC. The trial court ruled that MSBF did not act seasonably in exercising its right to conduct the survey. Confronted with evidence that MSBF did in fact conduct two surveys, the trial court dismissed the two surveys as self-serving. This is clearly an error on the part of the trial court. Proclamation No. 1670 authorized MSBF to determine the location of the seven-hectare area. This authority, coupled with the fact that Proclamation No. 1670 did not state the location of the seven-hectare area, leaves no room for doubt that Proclamation No. 1670 left it to MSBF to choose the location of the seven-hectare area under its usufruct. More evidence supports MSBFs stand on the location of the seven-hectare area. The main structures of MSBF are found in the area indicated by MSBFs survey. These structures are the main office, the three green houses, the warehouse and the composting area. On the other hand, the NHAs delineation of the seven-hectare area would cover only the four hardening bays and the display area. It is easy to distinguish between these two groups of structures. The first group covers buildings and facilities that MSBF needs for its operations. MSBF built these structures before the present controversy started. The second group covers facilities less essential to MSBFs existence. This distinction is decisive as to which survey should prevail. It is clear that the MSBF intended to use the yellow-shaded area primarily because it erected its main structures there. Inobaya testified that his main consideration in using Agham Road as the starting point for his survey was the presence of a gate there. The location of the gate is not a sufficient basis to determine the starting point. MSBFs right as a usufructuary as granted by Proclamation No. 1670 should rest on something more substantial than where MSBF chose to place a gate. To prefer the NHAs survey to MSBFs survey will strip MSBF of most of its main facilities. Only the main building of MSBF will remain with MSBF since the main building is near the corner of EDSA and Quezon Avenue. The rest of MSBFs main facilities will be outside the seven-hectare area. On the other hand, this Court cannot countenance MSBFs act of exceeding the seven-hectare portion granted to it by Proclamation No. 1670. A usufruct is not simply about rights and privileges. A usufructuary has the duty to protect the owners interests. One such duty is found in Article 601 of the Civil Code which states: ART. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault. A usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.[22] This controversy would not have arisen had MSBF respected the limit of the beneficial use given to it. MSBFs encroachment of its benefactors property gave birth to the confusion that attended this case. To put this matter entirely to rest, it is not enough to remind the NHA to respect MSBFs choice of the location of its seven-hectare area. MSBF, for its part, must vacate the area that is not part of its usufruct. MSBFs rights begin and end within the seven-hectare portion of its usufruct. This Court agrees with the trial court that MSBF has abused the privilege given it under Proclamation No. 1670. The direct corollary of enforcing MSBFs rights within the seven-hectare area is the negation of any of MSBFs acts beyond it.

The seven-hectare portion of MSBF is no longer easily determinable considering the varied structures erected within and surrounding the area. Both parties advance different reasons why their own surveys should be preferred. At this point, the determination of the seven-hectare portion cannot be made to rely on a choice between the NHAs and MSBFs survey. There is a need for a new survey, one conducted jointly by the NHA and MSBF, to remove all doubts on the exact location of the seven-hectare area and thus avoid future controversies. This new survey should consider existing structures of MSBF. It should as much as possible include all of the facilities of MSBF within the seven-hectare portion without sacrificing contiguity. A final point. Article 605 of the Civil Code states: ART. 605. Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof. (Emphasis added) The law clearly limits any usufruct constituted in favor of a corporation or association to 50 years. A usufruct is meant only as a lifetime grant. Unlike a natural person, a corporation or associations lifetime may be extended indefinitely. The usufruct would then be perpetual. This is especially invidious in cases where the usufruct given to a corporation or association covers public land. Proclamation No. 1670 was issued 19 September 1977, or 28 years ago. Hence, under Article 605, the usufruct in favor of MSBF has 22 years left. MO 127 released approximately 50 hectares of the NHA property as reserved site for the National Government Center. However, MO 127 does not affect MSBFs seven-hectare area since under Proclamation No. 1670, MSBFs seven-hectare area was already exclude[d] from the operation of Proclamation No. 481, dated October 24, 1968, which established the National Government Center Site. WHEREFORE, the Decision of the Court of Appeals dated 30 March 2001 and its Resolution dated 25 June 2001 in CA-G.R. CV No. 48382 are SET ASIDE. This case is REMANDED to Branch 87 of the Regional Trial Court of Quezon City, which shall order a joint survey by the National Housing Authority and Manila Seedling Bank Foundation, Inc. to determine the metes and bounds of the seven-hectare portion of Manila Seedling Bank Foundation, Inc. under Proclamation No. 1670. The seven-hectare portion shall be contiguous and shall include as much as possible all existing major improvements of Manila Seedling Bank Foundation, Inc. The parties shall submit the joint survey to the Regional Trial Court for its approval within sixty days from the date ordering the joint survey. SO ORDERED.

G.R. No. L-3691, November 21, 1951 JACINTO DEL SAZ OROZCO y MORTERA and MARIA PAZ ALCANTARA, plaintiffsappellants, vs.SALVADOR ARANETA, FRANCISCO DEL SAZ OROZCO Y LOPEZ, DOLORES DEL SAZ OROZCO Y LOPEZ, and the minors FELISA, EUGENIO, ANTONIO, JOSE, MARIA Y CARLOS, all surnamed DEL SAZ OROZCO Y LOPEZ whose natural guardian is DOA CONCEPCION LOPEZ VDA. DE DEL SAZ OROZCO, defendants-appellees. FACTS Eugenio del Saz Orozco died on February 7, 1922, leaving a will which he had executed on March 5, 1921, and was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son Jacinto del Saz Orozco y Mortera, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company, according to the project of partition executed pursuant to said will and duly approved by the court. On September 11, 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the plaintiff receiving his proportionate portion of 11,428 shares. On November 17, 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the plaintiff received 17,142 shares, making a total of 28,570 shares. ISSUE Whether or not the stock dividend is an income of fruits of the capital which should be given to and enjoyed by the life usufructuary. DECISION Yes. The same question was raised in the Matter of the Testate Estate of Emil Maurice Bachrach. In said case, Emil Maurice Bachrach was the owner of 108,000 shares of stock of the Atok Big Wedge Mining Co., Inc. He received 54,000 shares, representing 50 per cent stock dividend on said original shares. Justice Ozaeta, with the unanimous concurrence of the other members of this Court, ruled that a dividend, whether in the form of cash or stock, is income and, consequently, should go to the usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be declared only out of profits of the corporation, for it were declared out of the capital it would be a serious violation of the law. One of the differences pointed out by respondents is that by the declaration of stock dividends the voting power of the original shares of stock is considerably diminished, and, if the stock dividends are not given to the remainder men, the voting power of the latter would be greatly impaired. Bearing in mind that the number of shares of stock of the Benguet Consolidated Mining company is so large, the diminution of the voting power of the original shares of stock in this case cannot possibly affect or influence the control of the policies of the corporation which is vested in the owners of the great block of shares. This would not be a sufficient reason for modifying the doctrine of the Bachrach case.

In view of the foregoing, the judgment appealed from is reversed, and it is declared that the stock dividends amounting to 28,570 shares, above mentioned, belongs to the plaintiff-appellant Jacinto del Saz Orozco y Mortera exclusively and in absolute ownership. JUANA PICHAY, plaintiff-appellee, vs. EULALIO QUEROL, ET AL., defendants-appellants. Evaristo Singson for appellants. Jose M. del Valle, and Lucas Paredes for appellee.

WILLARD, J.: From the admissions made in the pleadings, and from the facts agreed upon in the court below, it appears that the plaintiff, Juan Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in twenty- five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she owed them. The contract by which this conveyance was made contained the following clause: Third. The one-third part of these lands belong to me, it being my share in the inheritance left by my deceased parents; but I have requested may said creditors to allow me to enjoy the usufruct of the same until my death, notwithstanding the fact that I have conveyed the said lands to them in payment of my debt, and I bind myself not to sell, mortgage, or leave the said lands as inheritance to any person. The defendants and appellants claim that this clause above quoted gave plaintiff no right of usufruct in the land, saying that it appears that she only asked for this right and it does not appear that the defendants gave it to her. This contention can not be sustained. The only reason for inserting this clause in the contract was for the purpose of securing to the plaintiff the right which is therein set out. The form of the words used is not sufficient to defeat this purpose. On the 10th of August, 1905, the owners of the twenty- five parcels of land made a partition thereof among themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were assigned to the defendants as the third to which they were entitled by reason of the conveyance from the plaintiff to them. They have been in possession of the tracts so assigned to them in partition since the date thereof, and are now in such possession, and have refused to recognized in the plaintiff any right of usufruct therein.lawphil.net In February, 1907, the plaintiff brought this action against the defendants, asking that it be declared that she had no right if usufruct in a third a twenty-five parcels of land; and that she had the right to the administrations of land, and that the appellees pay her the rents which they had received during the time of her dispossession. The court rendered the following judgment: In view of the allegations and evidence adduced by the parties, the court concludes: (1) That all the lands described in the complaint be delivered to Juana Pichay for administration; (2) that Juana Pichay has a right of usufruct in a third party of the said lands until her death; (3) that the partition of the said lands, made by the coowners of Juana Pichay can not affect the latter; (4) Eulalio Querol is hereby directed to deliver to Juana Pichay two crops from the third part of

the lands in question, or the equivalent thereof, taking as a basis the present crop that is, the crop to be harvested within a short time and (5) Juana Pichay is sentence to indemnify Eulalio Querol in the sum of P300 on account of the past suit, without costs. The first proposition contained in this judgment finds no support in the record, and there is nothing therein to show that the plaintiff had any acquired right to the administration of the lands described in the complaint. The second proposition finds its support in the record if it is limited to the lands which were assigned to the defendants in partition. The third proposition can not be supported. Article 490 of the Civil Code is as follows: ART. 490. The usufructuary of part of a thing held in common shall exercise all the rights corresponding to the owner thereof with regard to the administration and collection of fruits or interests. Should the community cease by reason of the division of the thing possessed in common, the usufruct of the part awarded to the owner of coowner shall appertain to the usufructuary. As to the fourth proposition, the agreed statement of facts shows that, while the defendants are in possession of the tracts which had been assigned to them, they received the crops for only two years; that the crop for the year 1906 amounted to 14 uyones and 13 manojos, of the value of P4 for each uyon, and that the crop of 1907 amounted to 15 uyones and 4 manojos, of the value of P6.25 for each uyon. These are the only amounts which the plaintiff is entitled to recover. As to the fifth proposition, while it appears that the plaintiff excepted to the judgment, and stated that she desired to present a bill of exceptions, yet she is in fact did not present any. The error, therefore, assigned by her with reference to this fifth proposition can not be considered. (Naval vs. Benavides, 8 Phil. Rep., 250; Purugananvs. Martin, 8 Phil. Rep., 519; Ullmann vs. Ullmann and Co., 10 Phil. Rep., 459.) The judgment of the court below is reversed and the case remanded, with directions to enter a judgment in favor of the plaintiff to the effect that she is entitled to the right of usufruct in the lands assigned to the defendants by the partition of August 10, 1905, and to enter a judgment against the plaintiff and in favor of the defendant Querol for P149.48 without cost of to either party. No costs will be allowed to either party in this court. So ordered.